Citation Nr: 0210154
Decision Date: 08/20/02 Archive Date: 08/29/02
DOCKET NO. 00-06 541 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
ATTORNEY FOR THE BOARD
Stanley Grabia, Counsel
INTRODUCTION
The veteran served on active duty with the United States
Armed Forces Far East (USAFFE) between November 1941 and June
1946.
The veteran died in February 1988 and the appellant, who is
his widow, appealed a May 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines.
In March 2001, the Board of Veterans' Appeals (Board)
remanded this case to the RO for consideration of the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000) (VCAA) (codified at 38 U.S.C.A. §
5103(2001)).
FINDINGS OF FACT
1. VA has made all reasonable efforts to assist the
appellant in the development of her claim and has notified
her of the information and evidence necessary to substantiate
her claim.
2. The veteran died in February 1988 from a cerebrovascular
accident (CVA) due to cerebral thrombosis. At the time of
his death, service connection was not in effect for any
disability.
3. A cerebrovascular condition was not manifested during the
veteran's military service or until many years after his
separation from service, nor is a cerebrovascular condition
shown to be related to such service.
CONCLUSION OF LAW
A disability incurred in or aggravated by service did not
cause or contribute to the veteran's death. 38 U.S.C.A.
§§ 1110, 1310, 1312, 5103A, 5107 (West 1991 & Supp. 2001);
38 C.F.R. §§ 3.303, 3.304, 3.312 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As a preliminary matter, the Board observes that on November
9, 2000, the VCAA, now codified at 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West Supp. 2001), was signed
into law. Besides eliminating the well-grounded-claim
requirement for benefits, this law heightened VA's duty to
notify a claimant of the information necessary to
substantiate the claim and clarified VA's duty to assist the
claimant in obtaining evidence necessary to substantiate the
claim. In August 2001 VA promulgated revised regulations to
implement these changes in the law. 66 Fed. Reg. 45,620
(Aug. 29, 2001) (to be codified as amended at 38 C.F.R §§
3.102, 3.156(a), 3.159 and 3.326(a)). The VCAA and the
implementing regulations are applicable to this claim. See
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).
VA has a duty to assist the claimant in obtaining relevant
evidence if a reasonable possibility exists that such
assistance would aid in substantiating her claim. In this
case, the RO has, to the extent possible, obtained all
available records. The appellant has not identified any
unobtained evidence that might aid in her claim or that might
be pertinent to the bases of the denial of this claim. In
sum, the Board is unable to conceive of a reasonable avenue
of development that has not yet been explored. Thus, the
Board finds that VA has fully met the duty to assist
requirements of the VCAA.
The record reflects that the claimant was properly informed
of the requirements for establishing service connection for
the cause of the veteran's death. VA's duty to notify the
appellant of the evidence necessary to substantiate her claim
has also been met. See 38 U.S.C.A. § 5103 (West Supp. 2001).
The RO informed her of the need for such evidence in the
February 2000 statement of the case, a letter dated in April
2001, and the April 2002 supplemental statement of the case.
POW Status. The appellant asserts that the veteran was a
POW. The initial question that must be resolved in this
matter is whether the record has established that the veteran
had status as a former POW for 30 days or more as defined by
38 C.F.R. § 3.309 and 38 U.S.C.A. § 1112(b). See 38 U.S.C.A.
§ 101(32); 38 C.F.R. § 3.1(y) (2001). The Public Laws to
which the appellant links her claim essentially enumerate a
number of diseases for which service connection may be
granted based upon one's status as a former POW for 30 days
or more. Former POW Benefits Act of 1981, Pub. L. No. 97-37
(1981), Pub. L. No. 100-322 (1988).
With regard to Philippine service, service department
certifications document various forms of service. 38 C.F.R.
§§ 3.8, 3.9 (2001). Generally, a service department
determination as to an individual's service shall be binding
on VA unless a reasonable basis exists for questioning it.
Manibog v. Brown, 8 Vet. App. 465 (1996); Young v. Brown, 4
Vet. App. 106 (1993); Duro v. Derwinski, 2 Vet. App. 530
(1992). Regulations also provide that VA shall accept the
findings of the appropriate service department that a person
was a prisoner-of-war during a period of war unless a
reasonable basis exists for questioning it. 38 C.F.R. §
3.1(y). Under 38 C.F.R. § 3.1, however, VA is not required
to follow the service department's findings that the veteran
was not a POW. Young, supra; VAOPGCPREC 14-94. VA may
utilize other evidence to establish the conclusion of a
Philippine veteran's period of service under 38 C.F.R. §
3.9(b) (2001). If the appropriate evidence is not submitted,
the claim fails due to the absence of legal merit or lack of
entitlement under the law and, as such must be denied as a
matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994).
A review of the record reveals that the service department
verified that the veteran had service with the USAFFE from
November 1, 1941, to June 30, 1946. This was broken down as
follows;
Pre-war status November 2, 1941 to December 7,
1941;
Beleaguered status December 8, 1941 to April
8, 1942;
No casualty status April 9, 1942 to August
15, 1945;
AWOL August 16, 1945 to November 7, 1945;
Status under MPA terminated November 7, 1945;
Regular PA Status November 8, 1945 to June
30, 1946.
He was found to be entitled to pay during the above periods
except from April 9, 1942, to August 15, 1945. He had no
recognized guerrilla service. The service department records
do not show any period of POW status for the veteran.
A review of the record reflects that in a November 1945
Affidavit for Philippine Army Personnel, the veteran reported
being inducted in the Army in August 1941 and serving until
April 9, 1942, when his unit surrendered to the Japanese
Forces. He escaped on April 16, 1942 and farmed as a
civilian until November 1945 when he reported for duty. In a
second Affidavit for Philippine Army Personnel, dated in
October 1947, the veteran reported that he escaped on April
9, 1942.
Under 38 C.F.R. § 3.1(y)(1), VA shall accept the service
department findings as to status as a former POW "unless a
reasonable basis exists for questioning it." The appellant
has alleged that the veteran had confinement as a POW. The
veteran report POW status on 2 separate Philippine Army
processing affidavit in 1946. One claiming 1 day as a POW
and the other claiming a week as a POW. Thus, the veteran
reported that he was a POW for at most 7 days. As he was not
incarcerated as a POW for 30 days or more, he fails to meet
the definition of a POW under the Former POW Benefits Act of
1981, Pub. L. No. 97-37 (1981), Pub. L. No. 100-322 (1988).
The service department records do not reveal any POW status.
Accordingly, the Board finds that there is no reasonable
basis on this record to conclude that the veteran meets the
criteria to be considered a former POW under the provisions
of Public Laws 97-37 and 100-32.
Cause of Death. In order to establish service connection for
the cause of the veteran's death, the evidence must show that
a disability incurred in or aggravated by active service was
the principal or contributory cause of death. 38 U.S.C.A.
§ 1310 (West 1991); 38 C.F.R. § 3.312 (2001). In order to
constitute the principal cause of death, the service-
connected disability must be one of the immediate or
underlying causes of death, or be etiologically related to
the cause of death. 38 C.F.R. § 3.312(b).
In order to be a contributory cause of death, it must be
shown that the service-connected disability contributed
substantially or materially to cause death, or that there was
a causal relationship between the service-connected
disability and the veteran's death. 38 C.F.R. § 3.312(c)(1).
If the service-connected disability affected a vital organ,
consideration must be given to whether the debilitating
effects of the service-connected disability rendered the
veteran less capable of resisting the effects of other
diseases. 38 C.F.R. § 3.312(c)(2).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110 (West 1991).
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (2001).
Additionally, where a veteran served continuously 90 days or
more during a period of war and a brain thrombosis becomes
manifest to a degree of at least 10 percent within one year
from the date of termination of service, such a disease shall
be presumed to have been incurred in or aggravated by
service, even though there is no evidence of such a disorder
during the period of service. 38 U.S.C.A. §§ 1101, 1112,
1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (2001).
As noted above, service connection was not in effect for any
disability during the veteran's lifetime. The death
certification shows that the veteran died on February [redacted],
1988. The cause of death was listed as cerebral thrombosis,
CVA. The certificate was issued by the municipal registrar
in January 1998, 10 years after the veteran's death.
There are no post-service medical records in the claims file
for the veteran and none were identified by the appellant.
The first report of cerebral thrombosis or CVA consisted of
the death certification which reflects that the veteran died
of these conditions almost 42 years after his separation from
service.
Upon careful review of this case, the Board finds that there
is no medical evidence in the record which tends to link the
cerebral thrombosis or CVA to the veteran's military service.
There is no evidence in the claims file which supports the
appellant's contention that the cause of the veteran's death
is related to his military service. The Board does not doubt
the sincerity of the appellant's belief that the veteran's
death was related in some way to his service. Nevertheless,
the appellant has not been shown to have the professional
expertise necessary to provide meaningful evidence regarding
the causal relationship between the veteran's death and his
active military service, including any POW experience. See,
e.g., Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a
layperson is generally not capable of opining on matters
requiring medical knowledge", aff'd sub nom. Routen v. West,
142 F.3d. 1434 (Fed. Cir. 1998), cert denied, 119 S.Ct. 404
(1998). See also Espiritu v. Derwinski, 2 Vet. App. 492
(1992).
Given the fact that the conditions which caused the veteran's
death were not shown during his military service or until
about 40 years thereafter, and given the absence of any
competent evidence providing a nexus between an in-service
injury or disease and the conditions that caused the
veteran's death, the preponderance of the evidence is against
the appellant's claim of entitlement to service connection
for the cause of the veteran's death.
ORDER
Service connection for the cause of the veteran's death is
denied.
Gary L. Gick
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.